George S. Henderson’s Law Blog

April 29, 2009

Workers Compensation Deposition – Part VIII

Filed under: Uncategorized — admin @ 9:30 pm

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Questions Regarding Your Claim of Psychiatric Injury

Solely Due To Job Stress

This type of emotional on the job injury results solely from job stress, or inititally from job stress, as opposed to a claim for psychiatric injury that is a result of the depression and anxiety which attends a serious physical injury with disability.

Within the workers compensation community, these type claims are often referred to as “pure psyche” claims, because they often do not involve physical injuries and result primarily from mistreatment at work, or from working in an extremely stressful, or hostile work environment.

A variation on the above would be the situation where there is a combination of job stress and physical injury and a subsequent claim of psychiatric injury as a consequence of the pain, sleep loss, and disability associated with a significant physical injury. It could be that by the time of the deposition, the person injured on the job is no longer suffering from the effects of the job stress, but is suffering from the effects of a psychiatric injury which was a consequence of the physical injury at work.

As to all psychiatric injuries there is the defense known as the “Predominant Cause” rule. Under that statutory defense, the burden of proof is on the injured worker and her attorney to prove that at least 51% of all current psychiatric symptoms are a result of the industrial cause, whether that is from job stress, or is a consequence of an industrial physical injury.

In cases where the psychiatric injury results from an act of violence such as an assault and battery, or an armed robbery, the “Predominant Cause” defense becomes the “Substantial Cause” defense, so that it is only necessary for the injured worker to prove that 35-40% of the current psychiatric symptoms are a result of the industrial factors.

The other defense available to the employer in a case of job stress is the “Good Faith, Non-Discriminatory Personnel Action” defense. This defense allows the employer whose disciplinary action or other supervisory action that has caused emotional injury to the employee to justify his/her action as a routine personnel action and thus escape liability for the employee’s injury.

It should be noted that when the psychiatric injury is a consequence of industrial physical injury rather than job stress, the employer may not utilize the “Good Faith Personnel Defense”.

The injured worker who has a claim for psychiatric injury should expect to be asked questions about stressful, or painful situations in her personal life, such as being victim of crime, having filed for bankruptcy, having gone through divorce/child custody proceedings, having experienced the loss of a close relative or spouse through death, or being the victim of a molest. Injured workers with claims for psychiatric injury are often asked questions about whether they have been subjected to domestic violence. The very personal questions are relevant due to the employer’s predominant cause, or substantial cause defenses.

In cases where the psychiatric injury claim is completely due to job stress, there will be questions related to the employer’s “Good Faith Personnel Action” defense. The person hurt at work, will be asked about policies and procedures, and whether it was customary for other workers to be supervised, or disciplined in the same manner that the claimant was supervised, or disciplined. There will be an attempt to elicit from the claimant information that the employer’s behavior while hurtful to the claimant, was the same type behavior that any similar boss would engage in under the same circumstances.

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